There has been a lot of controversy over a change in the rules that govern the operation of the House of Representatives. The majority party has opted to allow proxy voting, placing the votes of most of the members of what is euphemistically referred to as “the people’s house” in the hands of a select few.
Republican leadership in the House has threatened a lawsuit to force the Democrat majority to reverse the course, but the Supreme Court will likely decline to enter into congressional infighting. After all, the separation of powers inherent in the Constitution, as well as the judiciary’s dependence on Congress for funding, would compel the courts to beg out.
But the clear language of the Constitution shows there’s something rotten with proxy voting.
On May 15, the House of Representatives adopted HR 965 to authorize “remote voting by proxy during public health emergency due to Novel Coronavirus.” The measure passed with no Republican support and three Democrats voting in opposition. The resolution, which is only operational on the House of Representatives and not the Senate, incorporates a concept foreign to the U.S. Constitution. According to the resolution, a House member may represent his or her constituents through the actions of another House member they did not elect.
No House majority has ever been this brazen. One might recall, for example, Rep. William Natcher of Kentucky being wheeled onto the House floor on a gurney in 1994 to cast votes while his health was failing. No proxy there.
The House’s resolution stipulates that consultation between “the Speaker or the Speaker’s designee” and “the Minority Leader or the Minority Leader’s designee” is necessary in the determination of a “covered period” during which proxy voting is to be permitted.
Although the Constitution provides that “each House may determine the Rules of its Proceedings,” neither chamber is free to adopt a rule that contravenes the Constitution itself. Article 1, Section 5, Clause 3 describes how recorded votes are taken. It provides that “Each House shall keep a Journal of its Proceedings,…and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one-fifth of those Present, be entered on the Journal.”
Yeas and nays, then, are recorded for members. There is nothing here about recording yeas and nays from members’ “designees.” And note that in places where the Constitution permits a designated replacement — for example, in the case of the presiding officer of the Senate when the vice president is absent — it does so explicitly. The framers of the Constitution could have included language such as “the Yeas and Nays of Members, or their respective designees.” But they didn’t. We must presume that yeas and nays of members may not be delivered by proxy in the House.
When the House of Representatives operates in contravention to the federal Constitution, what is the status of bills which emerge from that chamber? Alexander Hamilton alluded to this possibility when he described the response that should emanate from the body politic when such bills make their way into law. In Federalist Paper No. 33, Hamilton advised, “These will be merely acts of usurpation, and will deserve to be treated as such.”
If the House majority does not reinstate the rule of law in the operation of their chamber, we can only hope that the Senate, the president of the United States, and the federal judiciary treat such bills as “acts of usurpation” perpetrated by an unruly people’s house.